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As we've posted, Paul has been quite involved with opposition to the Wisconsin's governor's recent attempt to sharply reduce public section collective-bargaining. He has an op-ed in Madison's Capitol Times explaining his opposition, part of which provides five suggested reason to oppose the bill:

1. Unions are democratic organizations that provide workers a collective voice in society and in the workplace. They are a countervailing power to employers, employer organizations and governments that promote business interests at the expense of working people and fair social values.

2. European societies function quite well with a much more extensive and robust public (and private) sector union voice. Despite the current problems in the European Union, they still seem to compete well globally while providing comparable if not superior wages, benefits and working conditions.

3. Unions provide protections on the job beyond wages and benefits, most notably procedures for due process protections. These are democratic principles.

4. Unions helped build and sustain the middle class. Walker’s proposals amount to “class warfare” in two ways: by fomenting intra-class warfare and by supporting the growth of income and wealth disparities favoring the elites in society. Note that the firefighters and police officers are excluded from his attack on unions. This is a classic divide-and-conquer management strategy.

In short, this is not about the right to have a say on “benefits,” as some misinformed news outlets have put it. No, this is about securing for workers basic human rights that international law recognizes.

Paul also question whether this really has anything to do with the state budget--a question that has particular weight given that the governor just last month pushed through a large tax break package.

This article examines the Supreme Court’s 2006 decision in Garcetti v. Ceballos in a novel light. Paying careful attention to the specific facts that were before the Court in Garcetti, and to the Court’s perception of these facts against the background of employee speech case law, the authors demonstrate that the Garcetti rule that public employee speech made “pursuant to official duties” is outside the First Amendment’s protection exempts a very narrow category of speech - only that speech which an employee is contractually bound to make. However, based on a review of the education-related cases applying Garcetti in the federal appellate courts, the authors show that the courts have applied a much broader version of the Garcetti rule than the Supreme Court initially developed, and have accordingly further limited public employee speech rights in the guise of applying the Garcetti precedent.

Part of the blame for this set of rights-limiting appellate rulings undoubtedly lays with the Supreme Court’s failure to clearly articulate a workable test for determining whether an employee’s speech was rendered “pursuant to official duties.” Accordingly, the authors advance just such a workable test, which both mutes Justice Souter’s expressed concerns over indeterminacy and allows for a more principled approach to applying the threshold First Amendment exemption without limiting public educational employee speech rights further than the Garcetti decision itself limited such rights. The authors show that the application of this proposed test would have led to the opposite result on the Garcetti threshold question in most, if not all, of the cases reviewed.

The authors acknowledge that, even using their proposed test, the Garcetti rule by its own terms appears to exempt public employee speech pursuant to duties of (1) auditing and fraud prevention, and (2) teaching and scholarship from the First Amendment’s protections. These categories of speech are uniquely valuable to the public, and subjecting such speech to unilateral employer control effectively eliminates the primary justification for the speech’s existence. The authors survey recent decisions in cases presenting claims based on internal auditing, teaching, and scholarship, identify some emerging trends, and conclude by offering some preliminary thoughts as to the direction that future rulings should pursue.

Scott tells us that this short piece represents a portion of the longer project (still in progress) that he presented at the Labor and Employment Law Colloquium in St. Louis in September. I very much look forward to reading this and the next piece!

PS

This article examines the Supreme Court’s 2006 decision in Garcetti v. Ceballos in a novel light. Paying careful attention to the specific facts that were before the Court in Garcetti, and to the Court’s perception of these facts against the background of employee speech case law, the authors demonstrate that the Garcetti rule that public employee speech made “pursuant to official duties” is outside the First Amendment’s protection exempts a very narrow category of speech - only that speech which an employee is contractually bound to make. However, based on a review of the education-related cases applying Garcetti in the federal appellate courts, the authors show that the courts have applied a much broader version of the Garcetti rule than the Supreme Court initially developed, and have accordingly further limited public employee speech rights in the guise of applying the Garcetti precedent.

Part of the blame for this set of rights-limiting appellate rulings undoubtedly lays with the Supreme Court’s failure to clearly articulate a workable test for determining whether an employee’s speech was rendered “pursuant to official duties.” Accordingly, the authors advance just such a workable test, which both mutes Justice Souter’s expressed concerns over indeterminacy and allows for a more principled approach to applying the threshold First Amendment exemption without limiting public educational employee speech rights further than the Garcetti decision itself limited such rights. The authors show that the application of this proposed test would have led to the opposite result on the Garcetti threshold question in most, if not all, of the cases reviewed.

The authors acknowledge that, even using their proposed test, the Garcetti rule by its own terms appears to exempt public employee speech pursuant to duties of (1) auditing and fraud prevention, and (2) teaching and scholarship from the First Amendment’s protections. These categories of speech are uniquely valuable to the public, and subjecting such speech to unilateral employer control effectively eliminates the primary justification for the speech’s existence. The authors survey recent decisions in cases presenting claims based on internal auditing, teaching, and scholarship, identify some emerging trends, and conclude by offering some preliminary thoughts as to the direction that future rulings should pursue.

Sean C. Koehler, Senior Articles Editor of the Fordham Urban Law Journal, writes to let us know about the publication of several labor/employment essays in the Urban Law Journal's book on immigration policy. This is a themed volume with fourteen articles and essays from many of the leaders in the immigration law field. Each piece either suggests a specific fix to the U.S. Immigration system or discusses in depth a specific flaw in the system. Here are the essays with a labor/employment angle:

OK, slight exaggeration, but Paul is in Madison supporting state employees in the face of the governor's attempts to limit public-sector unions' ability to represent government workers and limit those workers' ability to object generally to working conditions. Here is what he said today in the BNA Daily Labor Report:

Paul M. Secunda, a professor of labor and employment law at Marquette University Law School in Milwaukee, said he opposes S.B. 11 on both moral and legal grounds. He characterized the proposal as an exercise in political retribution, rather than budgetary restraint. He added that S.B. 11 is setting the tone for similar action in Florida, Indiana, Nevada, and Ohio.

“It doesn't square at all with the history of labor law,’’ Secunda told BNA. “Wisconsin was the very first state to have public sector bargaining laws similar to the National Labor Relations Act. Really, this law is not about repairing the budget. It's about killing the unions. It's about taking away the power of workers to negotiate fairly in their workplace. We know this because while the bill cuts the budget, there are a number of things that have nothing to do with cost savings. So this is just a punitive bill by a conservative Republican to punish the unions.’’

Secunda said he would help draft a legal challenge to S.B. 11 if it is enacted in the near future. He pointed to numerous strategies under the U.S. Constitution and the Wisconsin Constitution on which to challenge the proposal. He expressed concerns about the bill's impact on freedom of association and equal protection. He also expressed doubts about lawmakers' authority to bar employers from collecting dues on behalf of public sector unions.

Meanwhile, Democratic state senators have fled, hoping to ensure there will be no quorum to act on the the governor's bill. Republicans have responded by calling on the state police to round up the lawmakers and bring them back to Madison, but those state police have no power to bring the Senators back from Illinois and other states where they are thought to be in hiding.

Wisconsin was in political limbo, if not chaos, Thursday as a growing number of protesters swarmed the Capitol to denounce the new Republican governor's plan to strip collective bargaining rights from most public sector unions, and Democratic lawmakers fled the state, denying the GOP majority the quorum it needs to pass the bill.

Gov. Scott Walker's budget repair bill has sparked days of demonstrations in Wisconsin and is one of a number of attempts by newly elected Republicans to strike at public sector unions, one of the pillars of the Democratic Party.

Wisconsin public employees got a shot of support from Obama, who has personally spoken up against Gov. Walker's recent moves to severely limit public collective bargaining and has lent organizational support for opposition efforts. From the Washington Post:

Obama accused Scott Walker, the state's new Republican governor, of unleashing an "assault" on unions in pushing emergency legislation that would nullify collective-bargaining agreements that affect most public employees, including teachers.

The president's political machine worked in close coordination Thursday with state and national union officials to mobilize thousands of protesters to gather in Madison and to plan similar demonstrations in other state capitals.

Their efforts began to spread, as thousands of labor supporters turned out for a hearing in Columbus, Ohio, to protest a measure from Gov. John Kasich (R) that would cut collective-bargaining rights.

By the end of the day, Democratic Party officials were working to organize additional demonstrations in Ohio and Indiana, where an effort is underway to trim benefits for public workers. Some union activists predicted similar protests in Missouri, New Jersey and Pennsylvania.

We'll obviously have a lot more on this, as the story looks like it's not going away any time soon.

That's what one Democratic representative is suggesting. Eliot Engel (D-NY) has stated that significant cuts to the NLRB's budget could eliminate a needed mediator should the NFL face a work stoppage. Under a House Republican proposal, the Board would face a $50 million cut (the White House request for the Board's total budget in 2012 is $300 million). According to The Hill:

"If Republicans got their way, it is likely the NLRB would have insufficient resources to properly mediate a dispute between the owners and players," Engel said Thursday in a statement. "That would result in stadiums across the country being dark, and thousands of people who work in them out of work come September."

To support his claim, the New York Democrat pointed to the Major League Baseball strike of 1994 and 1995, which was resolved only after U.S. District Judge Sonia Sotomayor (now a Supreme Court justice) backed the NLRB's injunction to end the standoff.

"It was not collective bargaining that brought those players back on the field; it was the National Labor Relations Board," Engel said.

Despite the exaggerated message, it's probably not a bad idea for the NLRB to have a way for the general public to understand what it does--and there may be no better way to do that than through sports. At least if my students are representative . . . .

Mitch Rubinstein posts over at Adjunct Prof Blog about this Report (and Executive Summary) about how union organizers can use social media tools and work-family issues in organizing campaigns. The Report includes highlights of interviews with 23 organizers, and also includes recommendations that may help unions strengthen their relationships with women and young workers. The Report is written by the Labor Project for Working Families, Cornell ILR Programs, and University of California Berkeley Labor Center.

Marcia posted Tuesday on the EEOC hearing, held yesterday, on "discrimination" by employers against unemployed job seekers. Here's the EEOC's press release describing the outcome of the hearing. Marcia wondered about the strength of the link between an employer's refusal to hire laid-off workers and protected classifications such as race, sex, etc. -- if there's no link, then the EEOC lacks the statutory authority to do anything about this issue. Recognizing, I would assume, that its statutory authority here may be tenuous, the EEOC devoted substantial space in its press release describing the link. Here's a sampling:

Denying jobs to the already-unemployed can also have a disproportionate effect on certain racial and ethnic minority community members, Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, explained. Unemployment rates for African-Americans, Hispanics and Native Americans are higher than those of whites. When comparing college-educated workers, the unemployment rate for Asians is also higher. Thus, restricting applications to the currently employed could place a heavier burden on people of color, he concluded.

The use of employment status to screen job applicants could also seriously impact people with disabilities, according to Joyce Bender, an expert in the employment of people with disabilities. “Given my experience, I can say without a doubt that the practice of excluding persons who are currently unemployed from applicant pools is real and can have a negative impact on persons with disabilities,” Bender told the Commission.

Dr. William Spriggs, Assistant Secretary of Labor for Policy, offered data supporting this testimony. Spriggs presented current national employment statistics showing that African-Americans and Hispanics are overrepresented among the unemployed. He also stated that excluding the unemployed would be more likely to limit opportunities for older applicants as well as persons with disabilities.

I don't think this is enough to show actual disparate impact. It shows that there might be a disparate impact, but it's not a showing of actual impact.

Even if there is a showing of impact, I think employers can make a good argument of job-relatedness. Marcia pointed out a 2005 empirical study demonstrating that people who said they were laid off from their prior job had significantly worse job performance than those who said that they had quit their last job. When layoffs occur, it's not the star employees who get the axe first.

I understand that, in this truly awful recession, lots and lots of stellar employees have been laid off through no fault of their own. My point is only that a recent layoff -- like a time-gap on a resume or a recent conviction for theft -- is relevant to an employer's attempt to find the best possible employee for a given job, notwithstanding any possible disparate impact. It's a red flag that should cause the employer to dig deeper.

Two new articles, both just posted on SSRN and both forthcoming in Indiana L.J., have very different takes on the direction employment arbitration should be taking. Both articles agree that employment arbitration is broken in its current form; one article argues that it can be fixed and the other argues that it is beyond awful.

This article recasts the debate over mandatory arbitration of employment disputes as a discussion of the need to overhaul some critical elements of the way in which workplace rights disputes are adjudicated. Efforts to overhaul the system such as the Arbitration Fairness Act perpetuate the status quo of unjust cost-driven exploitation by law-breaking employers and employees alike. The authors provide an alternative two-part solution. First, we propose a "Mandatory Arbitration Act" that attempts to remedy legitimate problems like forum privacy that increase bad employers' abilities to hide from the law, while retaining significant benefits of pre-dispute arbitration like flexibility, speed, and reduced costs which augment access to justice for low wage earners. Second, we propose that employees engaged in interstate commerce can be terminated only if there is cause for the termination or severance pay given in lieu thereof. The article outlines a new employment standard that will provide employees with protection, allow employers to operate with greater certainty, and restore creditability and accountability to discrimination law.

Binding, pre-dispute arbitration imposed on the weaker party in an adhesion contract so-called "mandatory arbitration" should be recognized for what it truly is: claim-suppressing arbitration. Arguments that such arbitration processes promote access to dispute resolution have been refuted and should not continue to be made without credible empirical support. Drafters of such arbitration clauses are motivated to reduce their liability exposure and, in particular, to eliminate class claims against themselves. Claim-suppressing arbitration, furthermore, violates two fundamental principles of due process: It allows one party to the dispute to make the disputing rules; and it gives the adjudicative role to a decision maker with a financial stake in the outcome of key jurisdictional decisions "that is to say, arbitrators have authority to decide their own power to decide the merits, a question in which they have a financial stake. The Supreme Court has facilitated this doctrine through a series of poorly-reasoned and incoherent decisions, in which the Court's liberal wing has been particularly inept at seeing the stakes for consumer and employee plaintiffs. Exploiting Justice Breyer's incoherent line of majority opinions attempting to identify "gateway" issues, the conservative Court majority has recently insulated all questions of enforceability of arbitration clauses from judicial review and is on the verge of allowing corporate defendants to immunize themselves from class actions through use of arbitration clauses.

Not to be outdone by the state attacks on public-sector unions, Rep. Price (R-Ga.) has offered the following amendment to the continuing resolution bill in the House (making appropriations for the rest of the fiscal year):

None of the funds made available by this Act may be used to pay the salaries and expenses of personnel to carry out and implement the National Labor Relations Act (29 U.S.C. 151 et seq.).

Perhaps some unions should start making noises about secondary activity against businesses in his district to remind him of unintended consequences.

Note the significant resources devoted to independent contractors misclassification. This area is ripe for enforcement, which will only get more interesting as the role of a contingent workforce grows in our economy.

Apropos Jeff's post last week on Paul's media appearances regarding the Wisconsin governor's attempts limit public-sector unions' ability to represent government workers and limit those workers' ability to object generally to working conditions, and Joe Slater's comment that similar moves are afoot in Ohio:

John Campbell-Orde, general counsel for an independent public-sector union in Ohio, writes to tell us about Senate Bill 5, which was recently introduced in the Ohio legislature. Senate Bill 5 would effectively eviscerate Ohio's collective bargaining law, which was enacted in 1983 and took full effect in 1984. Campbell-Orde points out:

Not only would the proposed legislation overturn more than a quarter century of legal precedent and drastically harm public employees, it also would have broad political implications. Since public- sector unions are crucial sources of campaign contributions and electoral support for Democrats on both the state and national levels, the proposed legislation would benefit Republicans in state and national elections by severely weakening and in some cases destroying public-sector unions. I am sure this fact is not lost on the Republican leadership. Thus, not only is the proposed legislation an important state issue, it also is an important national issue, particularly since Ohio is a "swing state" in presidential elections.

And this, from Yahoo News, describingevents that occurred just minutes ago at the Ohio Statehouse:

A chorus of cheers and jeers at the Ohio Statehouse created an atmosphere resembling a sporting event on Tuesday.

Before the second reading of Ohio Senate Bill 5 could even begin, a rowdy crowd of approximately 1,000 public workers converged upon the atrium shouting at the bill's sponsor as she walked into the General Assembly. Republican Shannon Jones from Springboro was heckled as she walked a narrow gantlet between the hearing room and her office.

We have all seen the stories reporting that employers are not considering applicants for jobs who are not employed (here, here, and here, for example). Well tomorrow, the EEOC will hear more about that phenomenon. From the press release:

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on Wednesday, February 16, at 9:30 a.m. (Eastern Time), at agency headquarters, 131 M Street, N.E. In accordance with the Sunshine Act, the meeting is open for public observation of the Commission’s deliberations.

In order to examine the practice by employers of excluding currently unemployed persons from applicant pools, including in job announcements, the Commission will hear from invited panelists on the potential impact on job seekers. The meeting agenda includes:

Panel 1: U.S. Department of Labor’s Latest Unemployment Data

William E. Spriggs, Assistant Secretary for Policy, U.S. Department of Labor

A brief question-and-answer session with EEOC Commissioners will follow each panel discussion.

Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room.

This is a very interesting topic, and I'll be curious to hear whether such a refusal is linked to any particular protected class and whether there nonetheless might be enough of a link between having been laid off and future job performance to warrant considering employment status. Research done before the Great Recession suggested that people who said they were laid off from their prior job had significantly worse job performance (at least for temp jobs) than those who said that they had quit their last job. (Richard A. Posthuma, Michael A. Campion & Amber L. Vargas, Predicting Counterproductive Performance among Temporary Workers: A Note, 44 Indus. Rel. 550 (2005)), It would be interesting to know whether the same holds true for workers moving from a "permanent" job to another "permanent" job, and whether it holds true for the huge numbers of workers laid off in the last few years.

When I'm not teaching, writing, reading, or occasionally blogging, I'm lucky enough to get to work on every issue of the Employee Rights and Employment Policy Journal. I've learned so much by working on the articles published in this really excellent peer review specialty journal, but I rarely get the chance to post about them before the issue comes out. The issue we will send out this June is an exception.

In this issue, Susan Bisom-Rapp (Thomas Jefferson) organized a symposium on Decent Work in a Post-Recessionary World, and assembled a great group of articles on the subject. Here's a little preview:

Janice R. Bellace (Penn’s Wharton School) examines the connection between “decent work,” as expressed in the ILO's 2008 Declaration and 1998 Declaration of Fundamental Principles and Rights at Work, tracing the ILO’s commitment to social justice back to its founding, demonstrating that the agency’s purposes and goals serve as a link between the human rights principles expressed in the 1998 Declaration and the proactive stance of the ILO’s decent work program, which provides a foundation for sustainable economic recovery.

Roger Blanpain (University of Leuven (Belgium) and University of Tilburg (the Netherlands)), provides a perspective from Brussels, the capital of the European Union (EU), reviewing EU efforts to promote the goals and principles of decent work in a Europe reeling from the effects of the global economic crisis.

Susan Bisom-Rapp (Thomas Jefferson), Andrew Frazer (University of Wollongong, New South Wales), and Malcolm Sargeant (Middlesex University Business School, London), employ decent work as a yardstick to examine how older workers fared during the global financial crisis and are faring during the recovery in Australia, the United Kingdom, and the United States.

Michael J. Zimmer (Loyola, Chicago), tackles the long-standing, global decline of the trade union movement and its connection to global increases in income inequality, the latter a central concern of the decent work agenda.

Peggie R. Smith (Wash. U)examines the regulatory challenges associated with securing decent work for an economically-marginalized group, those laboring in domestic service, providing both a global and local focus

Timothy P. Glynn (Seton Hall) writes about decent work and workplace law enforcement at a time in which many US corporations have imported a central characteristic of globalization – shifting production or services to independent thirdparty suppliers.

The symposium is an excellent introduction to international and comparative labor law, and explores many incredibly important questions surrounding the standards of living and working made more complicated by the global recession. We all should be thinking about these things if we're not already. Look for the issue to hit your local library sometime in June.

Crain's New York Business has a recent story on employee suits alleging that their employers breached their fiduciary duty in recommending company stock for 401k plans. The contention in these suits, including on involving a bond insure that was backing junk mortgages, was that the employers did or should have seen the writing on the wall about declining stock values, but kept pushing company stock to employees. Our own Paul Secunda, as well as John commented:

The Ambac case represents a potentially expensive problem for many Wall Street employers. Lehman, Citigroup, Bank of America, Merrill Lynch, Wachovia and others have been sued by angry employees. Sterling Equities, the real estate investment firm chaired by Mets owner Fred Wilpon, is also the target of a fiduciaries suit which alleges that Mr. Wilpon and others inappropriately invested the bulk of their employees' retirement money with Ponzi schemer Bernard Madoff.

“These cases are where the action is in the world of class-action litigation,” said Paul Secunda,a law professor at Marquette University and editor of the blog Workplace Prof.

Unlike traditional class actions, which allege fraud, the cases brought by Wall Street employees allege breach of duty by the people with responsibility for company retirement plans.

“Breach of fiduciary duty is often easier to prove in court than fraud,” said Columbia University law professor John Coffee,and can result in large settlements. . . .

The biggest settlement to date remains the $250 million shelled out to more than 20,000 former Enron employees. Large as that recovery was, it represented only a fraction of those people's $1.2 billion in losses, according to Fiduciary Counselors Inc., a Washington research firm. In light of the Enron disaster, Congress ultimately required companies to offer employees a wide range of retirement-saving options to discourage people from investing so much in their company's stock. Since then, the percentage of 401(k) assets held in company stock has declined, to 9% in 2009 from 16% in 2002, according to data from the Employee Benefit Research Institute.